Transcript
Aotearoa History Show
The Native Land Court
MĀNI: February, 1908. A reporter from the New Zealand Herald walked down to the Wellington Court House.
There had been rumours of problems at the Native Land Court and he figured he'd ask Māori at the court what was going on.
“Their answers were almost identical. They could not hear what the judge said; he could not speak Māori well; he spoke it like a Pākehā; he mumbled … consequently those who were not sitting in the front near the judge's table often did not know what case was being heard.” - NZ Herald, February 6, 1908
WILLIAM: More people came over to share their stories.
One said there was a case where three people claimed the rights to a bit of land, but because no one had told the claimants when that case was being heard, only one of them was in court.
So, the judge just gave all the land to the guy who was there. The other two completely missed out.
MĀNI: Other cases had dragged on so long, some Māori just gave up and went home… The reporter wrote…
“Some have gone back to places as distant as the Upper Whanganui without a hearing. The expense of long journeys and staying for weeks in the city is no light matter.” - NZ Herald, February 6, 1908
WILLIAM: If we had this kind of dysfunction in a court today it’d be a massive scandal. But this was relatively normal for the Native Land Court.
MĀNI: At the time that article was written, the Court had been dismantling Māori land ownership for more than 40 years.
WILLIAM: Modern historians don’t have many good things to say about the Court.
MĀNI: Nope… Professor Stuart Banner called it...
“...conquest by contract” - Stuart Banner, 2000
WILLIAM: Historian Judith Binney described it as…
“...an act of war” - Dame Judith Binney, 1990
MĀNI: And Sir Hugh Kāwharu said the Court was…
"...a veritable engine of destruction for any tribe's tenure of land, anywhere" - Sir Hugh Kāwharu ( Ngāti Whātua), 1977
WILLIAM: This episode we’re looking into the history of the Native Land Court.
MĀNI: Or as some called it: Te Kooti Tango Whenua - the Land Taking Court.
Sting
WILLIAM: A year after the Treaty of Waitangi was signed in 1840, land ownership looked like this.
(map)
There were a few tiny islands of Pākehā settlement in an ocean of Māori land.
MĀNI: But, over the next 180 years, the picture completely reversed.
WILLIAM: About 95 percent of Aotearoa's land area was transferred out of Māori hands - although some land has been bought back by Māori individuals and organisations, or returned to iwi as part of treaty settlements"
A big part of how that land changed hands was the Native Land Court.
And the story of the Court isn’t just about the transfer of land, but also the transfer of political power and intergenerational wealth.
To put it bluntly this story helps explain why the median Pākehā had 151 thousand dollars in wealth in 2021, while the median Māori had just 42 thousand - about a quarter as much.
MĀNI: Before we get into the details of what the Native Land Court did, we kinda need to explain why it was set up in the first place.
So, the English translation of the Treaty of Waitangi has a bit which says…
“...the Chiefs of the United Tribes and the individual Chiefs yield to Her Majesty the exclusive right of Preemption over such lands as the proprietors thereof may be disposed to alienate…” - Article Two, Treaty of Waitangi
WILLIAM: Bit of a mouthful,
MĀNI: Yea, but it’s actually pretty simple. The Right of Preemption meant Māori couldn’t sell land to anyone except the Crown.
That was pretty convenient for the Crown: It had a monopoly on buying Māori land, so it could set whatever price it wanted.
In seven years from 1846 to 1853, the Crown bought 13.2 million hectares of land. That’s almost half of Aotearoa’s total land area.
WILLIAM: The Crown paid less than half a penny an acre on average, plus some promises to set aside land for Māori to live on, and to build roads, hospitals and schools.
MĀNI: Many of those promises weren’t kept and some iwi, like Ngāi Tahu, became virtually landless.
WILLIAM: By 1844 the Crown had spent 4 thousand pounds buying land from Māori, and earned 40 thousand pounds selling it to settlers.
Those profits were used to fund the colonial government - and to pay for more settlers to come to Aotearoa.
MĀNI: As you might expect, many Māori were deeply anxious about this.
They had hoped that the Treaty would secure Māori authority, but it wasn’t long before Pākehā officials and politicians were making the rules.
The only places Māori had real political power was on their own whenua. Now, that land, and the authority that went with it, was vanishing.
WILLIAM: In response some Māori leaders created networks of hapū and iwi which refused to sell land.
The largest and most influential of these networks was the Kiingitanga, the Māori King Movement, centred in the Waikato region.
MĀNI: The Crown wasn’t too happy about this anti-land selling movement, but Governor George Grey went back and read the Treaty of Waitangi, realised it said that Māori didn’t have to sell land if they didn’t want to, and everyone lived happily ever after.
WILLIAM: What?
MĀNI: No, not really. Governor Grey claimed Kiingitanga was threatening British colonial authority, sent thousands of troops into the Waikato and Bay of Plenty regions, and confiscated nearly 1.4 million hectares of land.
The New Zealand Wars dragged on in a series of campaigns and led to further raupatu (confiscations).
WILLIAM: This was an expensive, bloody, and politically unpopular way of obtaining Māori land.
However, it meant that by 1865 the Crown had military supremacy in large parts of Aotearoa.
This enabled the settler Parliament to impose new laws on Māori people and lands: Laws like the Native Lands Act, which established the Native Land Court
The Court’s job was to change the legal status of Māori land so it would be easier to alienate.
MĀNI: Alienate?
WILLIAM: Yea it’s a fancy legal word. It just means to sell, lease or give something away.
For example, this morning I alienated a delicious packet of chips from a vending machine.
MĀNI: Next we need to explain the different ways Māori and Pākehā understood rights to land.
WILLIAM: Say we have a thousand hectares of land occupied by a network of families.
Under a British system that land could be owned through legal title - basically legal documents laying out which people owned what land.
Any owner with legal title could alienate their share of the land - sell it, lease it, or give it away.
MĀNI: But in a traditional Māori system, no individual person could alienate land, cos land didn’t really belong to individuals
Māori held rights to occupy and use the resources of the whenua collectively.
These rights came from whakapapa (genealogy), which linked a hapū or iwi to the whenua, as well as rivers, lakes and coastline.
Māori had rights to use resources within the territory of their hapū, and the responsibility to preserve those resources for future generations.
This made the process of alienating Māori land pretty frustrating for settlers… Cos, they might find one Māori person wanting to sell a bit of land, but unless they could convince the whole hapū to go along with them, it wasn’t gonna happen.
WILLIAM: This is where the Native Land Court came in.
The Court’s job was to convert the Māori system of collective land rights, into the British system of legal title.
MĀNI: And the 1862 Native Lands Act, which first established the Native Land Court, had parts which look pretty good to modern eyes.
For example, it said the Court’s decisions would be made by a panel of Māori judges assisted by a single Pākehā judge.
WILLIAM: The Act also set aside the Crown’s Right of Preemption, so Māori were free to alienate land to whoever they wanted, which theoretically could increase the price.
MĀNI: So far you might be thinking… This doesn’t seem so bad…
Well strap in, cos from here on things get really depressing.
WILLIAM: For example: The plan to give the Courts decision making power to Māori judges? That never actually happened.
In 1865, the Native Lands Act was rewritten. The Māori judges were demoted to “assessors” and all practical decision making power was given to the Pākehā judges.
MĀNI: One Māori assessor, Wiremu Te Wheoro, who’d fought alongside British troops in the Waikato War, described the whole system as a scam and resigned his position. He gave a stinging critique of those who continued to participate in it.
“[The assessors] are of no use and have little or nothing to say to the cases being tried. They sit like dummies and only think of the pay they are going to get.” - Wiremu Te Wheoro (Ngāti Mahuta) and Pāora Tūhaere (Ngāti Whātua), Haultain Commission, 1871
WILLIAM: It’s clear the Pākehā Judges didn’t think the Court’s job was simply to establish which Māori had rights to what land - but, rather to get much of that land into Pākehā hands.
Judge Henry Monro wrote:
“I maintain that every legitimate encouragement should be held out to [Māori] to part with their surplus lands to those who can make the use of them for which they were intended.” - Judge Henry Monro, 1871
MĀNI: Judge Monro’s words were based in a Pākehā worldview that saw land in Aotearoa as a resource - if it wasn’t being used “productively” for farming, or housing, or mining, or some other form of profit, then it was “surplus” or “waste” land.
WILLIAM: Meanwhile, Māori saw land as part of their identity as well as their economy. The word “whenua” means land, but also “placenta”... a reference to the belief all people are descended from Papatūanuku, the earth mother.
MĀNI: Some areas of the whenua might have special significance as a source of food or other resources, but all land had value. It didn’t matter if it was being used “productively” in a pākehā sense.
WILLIAM: Some Land Court Judges may have just been ignorant of Māori worldviews, but others were straight up hostile. For example, Judge Frederick Maning, who described Māori as…
“...mean, treacherous, vain, lying and dangerous … cunning as Satan and dangerous as the serpent." - Judge Maning, 1872
MĀNI: Woah…
WILLIAM: Yeah that guy was pretty racist even by 19th century standards.
MĀNI: Maybe not the best person to have on the Court?
WILLIAM: Yup, as legal historian Stuart Banner wrote…
“...it is hard to imagine [Judge Maning] could have put all his disgust for the Māori and his hatred of his own job aside and devoted careful attention to the merits of each claim. … many officials most likely shared his indifference to issues of justice among Māori. For this reason, issues of the greatest importance to the Māori could be decided in the most casual, offhand way.” - Stuart Banner, Conquest by Contract, Law & Society Review, 2000.
MĀNI: But the story of the Native Land Court is less about individual decisions of corrupt or racist judges. It’s more about how the Court operated as an institution.
WILLIAM: For example: the 1840 rule, which meant the Court would only consider land ownership as it existed when the Treaty was signed.
Think of iwi and hapū playing musical chairs with their territories and boundaries, and then, in 1840, the music stops - those boundaries are locked in forever.
This caused some problems because the Treaty was signed in the aftermath of the Musket Wars, and many tribes had temporarily evacuated traditional lands to escape their rivals.
MĀNI: So if one iwi had moved out of an area to escape attack and another iwi set up a camp so they could take tuna from a local river … who owned the land?
Tīkanga Māori would usually privilege the first iwi given their deep links to the whenua through whakapapa. But the Court, following the 1840 rule, might award the land to the second iwi.
WILLIAM: Also, for the first eight years the Court had something called the ten-owners rule. In short it usually granted land blocks smaller than 5 thousand acres to a group of only ten owners.
Sometimes larger blocks were also granted to just 10 people.
In theory, those owners were trustees. They were supposed to represent everyone with rights to that land. Potentially hundreds, or even thousands of people.
But in practice any of the ten owners could sell the land without consulting anyone.
MĀNI: A famous example was the 19 thousand acre Heretaunga block in the Hawkes Bay region. It was granted to ten owners in 1866.
17 thousand acres of land were sold within three years. Mostly to repay debts to storekeepers.
In 1872, 554 Māori signed a petition to parliament which said that…
"the storekeepers urged the grantees to sell the portions for which they were trustees for others … the sale was urged before the grantees were aware of what they were doing; consequently they sold for a small price.” - Petition of Renata Kawepo and others, 1872
WILLIAM: Partly in response to that petition, the ten owner rule was changed so all members of a tribe could be named as owners.
But, ironically, this made it even easier for settlers to buy land.
Every named owner was a potential target for land buyers, and if anyone sold - that affected everyone with rights to the land.
Land purchasers did stuff like release livestock, cut down trees, drain wetlands - which made it very difficult for Māori to carry on life as normal.
MANI: It’s hard to harvest kererū if the trees have been cut down, and it’s hard to catch tuna if the wetlands have been drained.
WILLIAM: And even if some Māori wanted to adopt European style agriculture, most couldn’t because they struggled to access the cash to finance it.
MĀNI: So given all these problems why did Māori agree to go to Court in the first place?
WILLIAM: Well some saw the Court as a way of confirming their rights to land and resources.
MĀNI: Some wanted money from land sales to invest in livestock, or housing, or new technologies.
WILLIAM: The Crown framed the Court as a way for Māori to shore up property rights and better participate in the new colonial economy emerging around them.
But, what the Court actually did was get more land for colonists. And it was very good at it.
MĀNI: One of the biggest reasons Māori were pulled into the Court was to settle debts.
Sometimes those were debts to storekeepers or private land speculators, but often they were debts to government departments.
For example, here's part of a letter from a Crown land agent called James Mackay.
“I attempted in vain to get [Ngāti Tamaterā] to treat for the sale of [land] to the Government. They refuse to take ‘the Governor’s money’. At this time their old and influential chief Tāraia Ngākuti died, and … a very great feast was contemplated, and although the obstructives would not take money they joined the friendly natives in procuring some thousands of pounds worth of flour, sugar, tobacco, tea, bullocks, sheep and clothing”. - James Mackay, Letter to Audit Department
MĀNI: So James Mackay is boasting about offering loans of food and supplies to grieving Māori so they could do their bit to support a tangihanga, then forcing those Māori to pay back the loans in land…
WILLIAM: This wasn’t a one off by the way... Government agents and private land buyers often used tangi as opportunities to obtain land through loans.
MĀNI: Maybe you could say, “well, that’s a bit ghoulish but nobody was forcing Māori to take those loans.”
WILLIAM: But even if YOU were never in debt, someone else's debt could drag you into the court.
Like, if one Māori who had taken a loan needed to sell land to pay that debt, they could go to court on their own.
MĀNI: But if other Māori with rights to the same land didn't turn up... well... the court sometimes just dealt with the person who was there. The others could miss out entirely and their land might be sold out from under them.
WILLIAM: This was key to the Native Land Court. A whole community could be forced to attend court by a single person, who might have been caught up in debt.
MĀNI: This undermined the system of collective decision making which was and still is a bedrock of Māori society.
WILLIAM: And this was no accident. Speaking in a parliamentary debate in 1870 Justice Minister Henry Sewell said the purpose of the Land Court was…
“...the detribalisation of the Māori – to destroy, if it were possible, the principle of communism upon which their social system is based” - Henry Sewell, Parliamentary Debate, 1870
MĀNI: And once you found out you had to go to Court, that was just the start of your problems.
Hearings were almost always in colonial settlements, often far from kāinga Māori - plus there were no fixed dates for hearings.
You could spend days travelling, then wait for weeks or months until the judge was ready to hear your case.
WILLIAM: And even presuming the court ruled in your favour, you then had to pay back all the debts you’d racked up while waiting.
MĀNI: Going to the Native Land Court was EXPENSIVE!
WILLIAM: There were attendance fees, survey fees, lawyers fees, food and accommodation costs.
As the New Zealand Herald noted in 1883…
“...unless the lands in which [Māori] are interested are of considerable value, more money is expended in securing them than they are worth.” - New Zealand Herald, 1883
MĀNI: So, once again, Māori might go to court hoping to secure their land, but ended up so heavily in debt they had to sell the land anyway.
WILLIAM: The key point is that in theory the Native Land Court was voluntary, but in practice many Māori had no choice but to engage with it. In theory it secured Māori land ownership, but in practice it eroded it.
MĀNI: The Court’s form and function was different from outright confiscation, but it had the same effect. As Hone Kōtuku of Waikato put it in 1876
“...the sword of steel is put out of use, but the sword of deceit is used instead” - Hone Kōtuku, Te Wananga, 1876
WILLIAM: Between 1840 and 1900 Māori land ownership collapsed from 26.8 million hectares, to two million. Only about seven and a half percent of Aotearoa’s total land area was left in Māori hands.
And the Court didn’t just cost Māori their whenua. As one MP noted in a parliamentary debate.
“I believe we could not find a more ingenious method of destroying the whole Māori race than by these Courts. The Natives come from the villages of the interior, and have to hang about for months in our centres of population ... the result is a great number contract diseases and die” - Robert Bruce, 1885
MĀNI: Plus there were all the normal problems of spending a long time away from home. You weren’t available to look after elders or young children, you weren’t around to plant the next year’s crops.
And it’s not as if Māori were quiet about all this.
Between 1870 and 1900 Parliament received an average of 30 petitions complaining about the Court every year.
WILLIAM: In the mid-1870s iwi held several large hui calling for Kotahitanga (unity or solidarity) between Māori all over Aotearoa.
They became known as the Kotahitanga movement and together they petitioned the Crown to replace the native land court with a Māori-run institution and recognise a separate Māori parliament.
MĀNI: Several key hapū and rangatira within the Kotahitanga movement had supported the Crown during the New Zealand Wars.
So of course, the Crown listened intently and took the Kotahitanga movement's concerns very seriously.
WILLIAM: What?
MĀNI: No, not really. They basically ignored Kotahitanga requests.
So in 1881, a Kotahitanga hui at Waitangi resolved to go higher up the chain.
The next year a delegation of rangatira travelled to England hoping to meet with Queen Victoria.
They had a petition requesting a Royal Commission to…
“...abrogate the evil laws affecting the Māori people, and to establish a Māori parliament, which shall hold in check the European Authorities who are endeavouring to set aside the Treaty of Waitangi” - Petition to Queen Victoria, 1882
WILLIAM: This petition specifically called out the various versions of the Native Lands Act, which it pointed out were..
“...not assented to by the Native chiefs in all parts of the Island. Nor is there any basis in the Treaty of Waitangi for these laws, which continuously bring upon our lands and upon our persons great wrongs” - Petition to Queen Victoria, 1882
MĀNI: The Queen carefully read this petition and …”
WILLIAM: No way, we know it didn’t go like that!”
MĀNI: No, This petition never reached the Queen. It was sent back to the New Zealand Government, which more or less ignored it.
WILLIAM: Sounds frustrating…
MĀNI: Extremely frustrating…
While the kotahitanga movement never got the powers it sought, it did achieve something… It boosted national Māori unity - not an easy feat.
WILLIAM: Remember how Justice Minister Henry Sewell said the goal of the court was “the detribalisation of Māori”? Well, it kinda worked, but not the way he expected.
MĀNI: Iwi and hapū affiliation were still as important as ever, but no matter your tribe, everyone had a problem with the Native Land Court.
That opposition helped forge a national Māori political identity. And this idea that all Māori share common interests is still a powerful feature of New Zealand politics today.
WILLIAM: Speaking of politics, some Māori fought the land court from within the Pākehā system.
In 1867 parliament established four Māori seats and those Māori MPs frequently protested the land court and did achieve some measure of change.
MĀNI: In the early 1900s Native Affairs Minister James Carroll of Ngāti Kahungunu, along with a new generation of Māori leaders such as Apirana Ngata of Ngāti Porou, made repeated attempts to reform Māori land laws.
Apirana Ngata, who later became Tā, or Sir, Apirana Ngata - these days he’s on the 50 dollar note.
WILLIAM: The most important were known as incorporation and consolidation… that meant taking land titles split between dozens – even hundreds – of Māori and bringing them together in holding companies that worked in the best interests of all those owners.
MĀNI: Some of these incorporations are still around. For example Parininihi ki Waitōtara or PKW. Today it manages more than 20 thousand hectares in the Taranaki region.
WILLIAM: There’s also the Māwhera Incorporation on Te Tai Poutini, which owns and manages large chunks of Greymouth.
MĀNI: Carroll, Ngata and their allies managed to slow down the pace of land alienation. It became known as the “Taihoa” or “wait a while” policy.
But it didn’t last. Between 1911 and 1921 nearly a million more hectares of Māori land was sold.
And as the 20th century unfolded, the 19th century idea that Māori people and Māori land needed to make way for Pākehā who would make New Zealand more “productive”, persisted.
WILLIAM: Probably the clearest example was the 1967 Māori Affairs Amendment Act.
MĀNI: …Yep, this was still going on in the 1960s.
WILLIAM: Among other things, this Act gave government agents known as “Improvement Officers” the power to investigate Māori land. If they thought that land wasn’t being used “productively”, the owners could be forced to sell it.
MĀNI: But the backlash to this law was massive. In fact, some suggest it was a key catalyst for the so-called “Māori Renaissance.” - a rebirth of Māori activism.
Groups like the Māori Women's Welfare League, the Federation of Māori Students, the Māori Graduates Association and the New Zealand Māori Council described it as “the last great land grab”.
WILLIAM: Over the next decade, new youth protest movements like Ngā Tamatoa sprung up, partly in response to the ongoing alienation of Māori land.
MĀNI: People like Whina Cooper, a founder of the Māori Women's Welfare League, argued that presenting submissions to parliament wasn’t enough; direct action was needed..
So, in 1975 she led a hīkoi (march) from Northland to Wellington.
Along the way the marchers stopped at local marae and the hīkoi grew.
WILLIAM: Their famous catch cry was “not one more acre”. Meaning all remaining Māori land should remain in Māori ownership.
MĀNI: The hīkoi was five thousand strong by the time it arrived at parliament. Whina Cooper, later to become Dame Whina, presented a petition signed by 60 thousand people demanding an end to the alienation of Māori land.
WILLIAM: Over the 1970s and 80s there were a number of reforms including the establishment of the Waitangi Tribunal which was given powers to investigate historical injustices, including actions of the Native Land Court.
Finally, in 1993, parliament passed Te Ture Whenua Māori Act. After 128 years, the Court’s power to alienate Māori land was removed.
MĀNI: But the Court still shapes Māori lives today. For one thing, the 1993 act makes it illegal to alienate Māori land in reserves or native title.
On one hand, that means the whenua can never leave the hands of the traditional owners.
But on the other, because the land can never be sold it means it can never be used to raise a loan. Which makes it difficult for those landowners to build houses or start farming.
WILLIAM: The Treaty claims settlement process has also undone some of the injustices caused by the Native Land Court.
The Crown has given official apologies, transferred some land back into Māori ownership, and, as of 2018, paid more than 2.2 billion dollars to iwi in monetary compensation.
MĀNI: Some of those payments have been used to purchase back parts of tribal estates on the open market.
WILLIAM: But these payments, and the partial recovery of land, represent a tiny fraction of what the Native Land Court cost Māori.
MĀNI: Māori once owned all the land in Aotearoa, today many thousands of Tangata Whenua lack whenua.
Our people deal with low rates of home ownership and high rates of homelessness…
A big reason for that is the Native Land Court.
WILLIAM: It all goes to show, history is rarely in the past.
MĀNI: Hei kona.
